When Oskar Groening's appeal was rejected,the decision paved the way for additional prosecutions of any person still unpunished who served in the Nazis’ six death camps.

There were many sighs of relief last week when the German Bundesgerichthof (Federal Court of Justice), announced it had rejected the appeal of Auschwitz operative Oskar Groening, who in July 2015 had been convicted of accessory to murder in 300,000 cases. The sense of relief that the original verdict was confirmed, it should be noted, however, had far more to do with the implications for the continued prosecution of Holocaust perpetrators in the Federal Republic than with the severity of Groening’s crimes, and hence its significance.

To understand the conviction of the man whose primary responsibility at the camp was the theft and processing of the currencies brought to Auschwitz, which were sent back to Berlin for use by the Third Reich, rather than the more common murderous activities engaged in on a daily basis by the staff, we have to examine a dramatic change in German prosecution policy which was implemented about eight years ago. Until that time, the crimes of the Third Reich had been prosecuted in West Germany, and later in unified Germany, as “regular” cases of murder in accordance with German law, as it had been formulated prior to World War II. In other words, the German judicial system refused to adopt the new categories of criminality created by the Allies at the Nuremberg Trials, such as war crimes and crimes against humanity, which were necessary to successfully prosecute the crimes of enormous scope committed by the Third Reich.

These new categories were rejected by the German courts as ex post facto laws, which had not existed at the time the crimes were committed, a momentous decision which severely limited the capability of the German judicial system to mete out justice commensurate with the crimes of the perpetrators. (This decision is hardly surprising in view of the recent findings of the large number of Nazi Party members who were employed by the West German administration after World War II.) Under these circumstances, it was only natural that the number of Nazi war criminals brought to justice in German courts steadily declined over the years, since in order to prosecute an individual for Holocaust crimes, the prosecution had to prove that the suspect had committed a specific crime of at least accessory to murder, motivated by racial hatred, against a specific victim. Thus when the United States urged Germany to extradite and prosecute Ivan Demjanjuk, after they had successfully stripped him of his American citizenship and had him ordered deported from the US on the basis of his service in the Sobibor death camp, the Germans were inclined to refuse on the grounds that lacking evidence of a specific crime, they were unable to bring him to justice.

It was at this point in time that Thomas Walther and Kirsten Goetze, two German prosecutors working at the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes (Zentrale Stelle) came up with an innovative solution that not only enabled the criminal prosecution of Demjanjuk in Germany, but also enabled bringing to justice numerous additional Holocaust perpetrators, who otherwise would never have been put on trial, among them Oskar Groening. The solution provided by Walther and Goetze was as follows: since the sole purpose of the Nazi death camps was the mass murder of innocent civilians categorized as “enemies of the Reich,” in effect any persons who had served there could be convicted of at least “accessory to murder,” which was punishable in Germany by imprisonment.

To the credit of the German prosecution, they were ready to adopt this dramatic change, whose initial test was the trial of Demjanjuk in Munich, which began in October 2009. Once he was convicted (in May 2011) of accessory to murder and sentenced to five years in prison, the search began for additional suspects, not only of those persons who had served in the death camps, but also the members of the notorious Einsatzgruppen, the special mobile killing squads which murdered approximately 1.5 million people in the areas once part of the Soviet Union.

In the meantime, however, Demjanjuk appealed his conviction to the Bundesgerichthof, but died before it was heard, leaving the judgment intact. On that basis, the Germans proceeded to prosecute Groening for his role in Auschwitz, a case which was perhaps not as clear-cut as that of Demjanjuk, since there was no evidence Groening was physically involved in the murder process. Unlike Sobibor, which was only a death camp, Auschwitz was a labor camp as well, and the argument could have been made that the Demjanjuk conviction applied only to the four “pure” death camps: Treblinka, Belzec, Chelmno and Sobibor, but not to Auschwitz and Majdanek, which also had labor camps.

That was not the case, however, and in July 2015, Groening was convicted and sentenced to four years in prison. When his appeal was rejected, the sigh of relief was because that decision has now paved the way for additional prosecutions of any person still unpunished, who served in any the Nazis’ six death camps. And while the number of such individuals is only a small percentage of those who served, any justice achieved even at this late date is better than ignoring these killers and accomplices, and sending a message that we no longer feel obligated to the victims to find those who turned innocent men, women and children, some of whom were even older than the perpetrators are today, into victims simply because they were classified unjustly as “enemies of the Reich.”
The author is the chief Nazi-hunter of the Simon Wiesenthal Center and director of the Center’s Israel Office and Eastern European Affairs. His websites are www.operationlastchance.org and www.wiesnthal.com. He can be followed on Facebook and on Twitter @ EZuroff.

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